As discussed previously, roadblocks exist relative to a party issuing a subpoena directly to a service provider, including issues related to the SCA and whether a party has standing to object to the nonparty subpoena. There are also roadblocks associated with consent agreements. For example, what if the opposing party will not agree to provide a consent agreement? If you are faced with an opposing counsel that will not supply a consent request, then a second avenue is available: send a discovery request directly to the opposing party. Courts appear to look more favorably upon direct discovery requests to the opposing party rather than directly to the Social Media service provider.
There is an increasing amount of case law addressing discovery requests directly to the opposing party. Most parties have objected to the requests on privacy and confidentiality grounds. Thus, the issue presented is must parties comply with requests for information pertaining to their Facebook, Twitter, and MySpace profiles? Yes, most courts have held that although providers do not have produce the requested documents, the subscribers do.
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The Alabama Supreme Court recently clarified its notice procedures relative to an insured settling with the tortfeasor’s carrier. Specifically, the Court answered a certified question from the Northern District Court of Alabama, stating:
Under Alabama law does the failure of an insured to give prior notice to his or her insurer of a proposed settlement and release of an alleged tortfeasor cause the insured to forfeit underinsured motorist coverage regardless of the insured’s actual knowledge of said coverage and regardless of prejudice to the insurer if the insured has possession of the policy which provides the coverage?
Insurance for Green Buildings…?
Here is a really interesting article I ran across earlier today. The three takeaways from this article are that insureds should take steps to protect against an enviornmental risk. The article advises to review carefully any policy exclusions setting out previous use of the site. Secondly, review the property provisions of the policy. Of significance, studies have shwon that green buildings typically present overall risk to insurers than do more traditional structurues. Lastly, green building owners should look for a policy greared specifically towards green and eco-friendly structures.
Jack Russell is a litigation attorney with Spain and Gillon, LLC, a full-service law firm based in Birmingham, Alabama. Contact him via email
Alabama Immigration Act–an Overview
Employers Beware: Alabama Begins Enforcement of Its New Immigration Act
One of my law partners, Jim Ferguson, recently issued a bulletin relative to Alabama’s Immigration Act. Given the impact of the Act to nearly every practice area, I decided to incorporate the highlights into this blog. As we all know, on September 29, 2011, the U.S. District court in Birmingham enjoined some provisions of Alabama’s tough new immigration law (Alabama Act 2011-535, officially entitled the Beason-Hammon Alabama Taxpayer and Citizen Protection Act), but allowed other provisions to remain in effect pending further court action. Below, Jim and I have set out the provisions most likely to affect employers and lets you know when the various provisions go into effect. One challenge is constant throughout: Employers must implement these provisions without discrimination based on national origin, ethnicity, race, or legal immigration status; all employees must be treated equally.
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As you can see from my prior posts and from such cases as Crispin v. Audigier, et al., 717 F.Supp.2d 965 (C.D. Cal. 2010). , simply sending a subpoena to Facebook and MySpace will not cut it. Assuming the providers even respond to it, which is not a given, they will probably object on the grounds that it violates the Stored Communications Act (“SCA”). The Court, in turn, will likely quash the subpoena. There are alternatives, however. Perhaps the most effective (and possibly easiest) alternative route is to obtain a consent agreement with the user. A consent agreement avoids the SCA because the SCA contains an exception for the “lawful consent of the user.” As such, if you can fashion an agreement with the user to provide discovery, you can avoid the restrictiveness of the SCA. It will also save you a lot of time and energy.
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I would like to thank everyone that attended my presentation today regarding discovery of social media and electronic data. The session had a great turnout and I really enjoyed getting to know everyone. In the next few days, I will post some additional thoughts from my presentation. Until then, thank you for everyone’s hard work and attendance.
As the East Coast prepares to address the devastating effects brought by Hurricane Irene, people will naturally turn to their insurers for coverage. Here is a quick article discussing the effects of the same.
Here’s an interesting article I ran across today regarding the impact of the debt ceiling debate as to insurers. Hopefully, everyone will find it as useful as I did.
Here’s an interesting article I stumbled across regarding adjustment of fine arts claims. I know this is becoming more and more prevelant with the value that antiques are bringing. As you can imagine, many have attempted to pass off worn, used antiques and other paintings as being caused by tornado damage. By way of an example, the article notes that
Becker cites an example of a painting that came in after a hurricane. “It had several tears and holes in the surface, as well as streaking down the front of the painting from the water damage. It was determined by looking at the holes under a microscope, that the fibers of the tear areas were actually old tears, meaning they were dirty, they were covered with a little bit of grime, they were dusty, which means the tears had been there for quite some time,” says Becker.
The Article goes on to recommend asking the following questions:
1. Was the item scheduled? If so, with blanket limits or individual item limits?
2. What value basis was used in the policy – agreed value, fair market value, retail replacement value, actual value? If value needs to be established, proceed with appraisal.
3. Is the piece authentic?
4. Can the piece be repaired? If so, what will repairs cost?
5. Is diminution in value anticipated after repairs? If so, to what percentage?
6. Does the cost of conservation plus diminution in value exceed the value of the piece?
7. If yes, the item should be considered a loss and salvage options can be considered. If no, conservation should be considered a viable option.
8. Secure a condition and treatment proposal from a professional conservator and proceed with treatment.
9. Conduct post-conservation inspection to assess if diminution in value occurred.
10. Receive post-treatment report from the conservator for file documentation.
Jack Russell is a litigation attorney with Spain and Gillon, LLC, a full-service law firm based in Birmingham, Alabama. Contact him via email
Recently, Governor Bentley enacted a panel to study the state’s insurance market and suggest improvements. A link to the article can be found here. The commission was initially enacted to study issues relative to the coastal areas which have been ravaged by hurricanes in recent years. However, the commission will expand its scope in light of April’s tornadoes. The goal is to again propose the idea of a captive insurance company to accumulate reserves tax-free and provide less expensive reinsurance to companies covering Alabama customer.
Jack Russell is a litigation attorney with Spain and Gillon, LLC, a full-service law firm based in Birmingham, Alabama. Contact him via email
